Test Your Knowledge of Social Media Policies and Employee Discipline

By: Paul Ebeltoft

In last month’s article, I told you that union and non-union employees alike have rights under the National Labor Relations Act. Specifically, the NLRB protects the rights of employees to engage in “protected concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. The following four questions test your knowledge of what those words mean in today’s workplace..1 Please answer the following questions as best you can before checking your work with the answers provided in this article.

1. Your company’s social media policy states: “When engaging in social networking, avoid identifying yourself as an employee of our company unless there is a legitimate business need to do so or when you are discussing terms and conditions of employment in an appropriate manner.” Later in the policy, your company states that the policy will never be interpreted to interfere with an employee’s right to self-organize or engage in concerted activity.

This language is:
A. Permitted.
B. Unlawful.

2. Your company’s social media policy states: “You must not use social media in a way that could negatively impact the company’s reputation.”

This language is:
A. Permitted.
B. Unlawful.

3. Your company promotes an employee to manager. That night, one employee posts a message to her Facebook page complaining that she had been wrongfully overlooked for this promotion. Three of her Facebook friends, all co-workers, respond and an online conversation ensues in which it is alleged that the promoted individual never did any work, had a negative attitude and poor managerial style. Later in the conversation, the employee who made the original posting stated that she hated her workplace and “she’d get out of there if she could.” One of the co-workers responded with “wouldn’t it be funny if all the good employees quit.” The next day, the company fires the employee who posted the message that started the online conversation.

The dismissal is:
A. Permitted.
B. Unlawful.

4. An employee is reprimanded by her supervisor in front of a regional manager for failing to perform a task she had never been instructed to perform. On her lunch break, the employee updated her Facebook page with a comment that started “That f…..g supervisor.” One of her co-workers “liked” the report. The following day, the employee tried to bring up the event with other employees and while they expressed sympathy, none viewed the incident with concern. The employee who “liked” the comment was separately approached by the posting employee. As the others, she expressed sympathy but no more. The posting employee is fired for the posting.

The dismissal is:
A. Permitted.
B. Unlawful.

Answers

Employers must be careful about overly broad social policy rules. The employer in question one violated the National Labor Relations Act because its policy was too vague. No employee would know, in advance, what an “appropriate” comment about terms and conditions of employment might be. The attempt to “save” the policy by saying how the company would interpret the policy does not make it less vague. An employee cannot know what will happen should the employer interpret an employee’s social media post as “inappropriate.” The correct answer is B.

If question one shows a vague policy, question two shows that you can be overbroad as well. The policy can be read to prohibit criticism of wages, hours, treatment on-the-job and other terms of employment. This is prohibiting too much. Doing so chills employees’ interest in exercising rights granted by the National Labor Relations Act. The correct answer is B.

Question three raises the issue of protected speech as well as protected concerted activity. The answer is B. An employee who seeks to induce or prepare for group action may comment on the quality of their supervision and their opportunity, or lack thereof, for promotion. Here, even though the employees do not have a current plan to act to address their concerns, the conversation does introduce the topic of collective action. Such conversation is an indispensible preliminary step to organized activity.

On the other hand, for question four, the answer is A. This is merely an expression of an employee gripe about unfair treatment. The post contained no request to initiate group action about terms and conditions of employment. Other employees who saw the post were not interested in taking some action with the charging employee. To be protected activity, the activity must be concerted. The employee must act with or on the authority of other employees and not alone.

The HR Bottom Line

Social media policies are a potential minefield. Reasonableness is an evolving concept in this area of the law. Do not adopt or act upon a social media policy without thoroughly investigating its legality.

Reprinted with permission from an article submitted for publication in the March, 2012 Southwest Area Human Resource Association newsletter.1. [All fact situations and answers are taken from Memorandum 12-31, Report of the General Counsel , National Labor Relations Board, published January 24, 2012.]?